Long Term Care Ombudsman: Access to Records

The Long Term Care Ombudsman Program, administered through the California Department of Aging, was established through the Older Californians Act [1] in response to the federal Older Americans Act. [2] The purpose of the Ombudsman program is to identify, investigate, and resolve complaints that may adversely affect the health, safety, welfare, or rights of residents of long-term care facilities. Federal law requires states to ensure that Ombudsmen have access to long-term care facilities and residents, appropriate access to review the medical and social records of a resident, as specified, and access to other specified records of residents and the facility. Furthermore, states are to prohibit willful interference with the functions of the Office of the Long Term Care Ombudsman Program, and to provide for appropriate sanctions with respect to interference, retaliation, and reprisals. [3]

Ombudsman Access to Protected Health Information

According to the Health Insurance Portability and Accountability Act (HIPAA), resident authorization is required for third party disclosures of protected health information (PHI). [4] The facility can only disclose PHI without a written authorization in the following instances:

PHI is used for treatment, payment, or operational purposes;

The facility has provided the resident with the Notice of Privacy Practices; and

The facility has made a good faith effort to obtain the resident’s signature acknowledging receipt of the Notice of Privacy Practices.

Therefore, written authorization by the resident or the resident’s responsible party should be obtained before the Ombudsman may access resident PHI. Alternatively, oral consents can be accepted, but must be witnessed by a third party and documented to be valid. This is the only scenario in which the facility should permit oral authorizations. Upon request by the Ombudsman, the facility must provide the name and contact information of the resident’s conservator, legal representative, or next-of-kin of any resident.

The Ombudsman may access the resident’s PHI despite the resident’s guardian or conservator if:

The facility or Ombudsman is unaware of the existence of the guardianship or conservatorship;

The guardian or conservator cannot be reached within three working days; or

The Ombudsman has reason to believe that the guardian or conservator is not acting in the best interest of the resident.

If the resident is unable to express consent and no guardian or conservator exists, then the Ombudsman may inspect the resident’s PHI if there is sufficient cause for inspection.

Senate Bill 609

California Senate Bill 609 establishes the Long-Term Care Ombudsman Improvement Act Fund to support operations and programs for the Office of the Long Term Care Ombudsman.

The Senate Bill also establishes increased civil penalties for willful interference with any lawful action of the Office of the Ombudsman from $1000 to $2500 in addition to assessed penalties particular to the incident. If the penalty is not paid within thirty days of the assessment, the director of the Department of Aging will take action to collect the penalties in the local jurisdiction. The aim of this increase is to deter facilities from choosing to commit violations and paying the penalty in order to prevent Ombudsman access to the facility or residents.

The state senate bill ultimately provides the Ombudsman with greater ability and resources to conduct duties, as previously established by the Older Americans Act and Older Californians Act.